Citation Nr: 0335690
Decision Date: 12/18/03 Archive Date: 12/24/03
DOCKET NO. 02-05 505 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to a disability evaluation in excess of 20
percent for Type-II diabetes mellitus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
J. T. Hutcheson, Counsel
INTRODUCTION
The veteran had active service from June 1964 to June 1967.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from an October 2001 rating decision of the
Montgomery, Alabama, Regional Office (RO), which established
service connection for Type-II diabetes mellitus and assigned
a 20 percent evaluation for that disability.
In April 2003, the veteran was afforded a video hearing
before the undersigned Acting Veterans Law Judge. The
veteran has been represented throughout this appeal by the
Disabled American Veterans.
The Board observes that the veteran has appealed from the
initial evaluation assigned for his service-connected
diabetes mellitus. In Fenderson v. West, 12 Vet. App. 119
(1999), the United States Court of Appeals for Veterans
Claims (Court) addressed a similar appeal and directed that
it was specifically not a claim for an increased disability
evaluation. However, the Court did not provided a specific
name for the issue in lieu of "increased disability
evaluation." In the absence of such direction, the Board
has framed the issue as entitlement to an initial evaluation
in excess of 20 percent for the veteran's diabetes mellitus.
The veteran is not prejudiced by such action. The Board has
not dismissed any issue and the law and regulations governing
the evaluation of disabilities is the same regardless of how
the issue is styled.
REMAND
The statutes and regulations governing the adjudication of
claims for Department of Veterans Affairs (VA) benefits have
recently been amended. The amended statutes direct that,
upon receipt of a complete or substantially complete
application, the VA shall notify the veteran of any
information and any medical or lay evidence not previously
provided to the VA that is necessary to substantiate his
claims. The VA shall make reasonable efforts to assist the
veteran in obtaining evidence necessary to substantiate his
claim. Veterans Claims Assistance Act of 2000 (VCAA),
38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R
§§ 3.102, 3.159, 3.326(a) (2003). The veteran's appeal has
not been considered under the amended statutes and
regulations. The United States Court of Appeals for the
Federal Circuit (Federal Circuit) has recently invalidated
the regulations which empowered the Board to directly issue
written notification of the VCAA to veterans. Disabled
American Veterans v. Sec'y of Veterans Affairs, 327 F.3d
1339, 1348 (Fed. Cir. 2003).
Additionally, the Federal Circuit has recently invalidated
the thirty-day response period contained in 38 C.F.R.
§ 3.159(b)(1) (2003) as being inconsistent with 38 U.S.C.A.
§ 5103(b)(1) (West 2002). Paralyzed Veterans of America v.
Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir.
2003). The Federal Circuit found that the thirty-day period
provided in § 3.159(b)(1) in which to respond to a VCCA
notice to be misleading and detrimental to claimants whose
claims are prematurely denied short of the statutory one-year
period provided for response. Therefore, the RO must take
this opportunity to inform the veteran that a period of one
full year may be taken to respond to a VCAA notice
notwithstanding any previously provided information.
The veteran advances on appeal that his diabetes mellitus has
increased in severity since the August 2002 VA examination
for compensation purposes. He asserts that his diabetes
mellitus now requires that he regulate his activities. The
Court has held that the VA's statutory duty to assist the
veteran includes the duty to conduct a thorough and
contemporaneous examination so that the evaluation of the
claimed disability will be a fully informed one. Green v.
Derwinski, 1 Vet. App. 121, 124 (1991).
The appellant is hereby notified that it is his
responsibility to report for any examination and to cooperate
in the development of the case, and that the consequences of
failure to report for a VA examination without good cause may
include denial of the claim. 38 C.F.R. §§ 3.158, 3.655
(2003).
Accordingly, this case is REMANDED for the following action:
1. The RO must review the claims file
and ensure that all VCAA notice
obligations have been satisfied in
accordance with the recent decision in
Paralyzed Veterans of America v.
Secretary of Veterans Affairs, 345 F.3d
1334 (Fed. Cir. 2003) as well as
38 U.S.C.A. §§ 5102, 5103, and 5103A,
(West 2003), Quartuccio v. Principi, 16
Vet. App. 183 (2002) and any other
applicable legal precedent.
2. The RO should then contact the
veteran and request that he provide
information as to all treatment of his
diabetes mellitus after August 2002
including the names and addresses of all
health care providers. Upon receipt of
the requested information and the
appropriate releases, the RO should
contact all identified health care
providers and request that they forward
copies of all available clinical
documentation pertaining to treatment of
the veteran, not already of record, for
incorporation into the record.
3. The RO should then request that
copies of all VA clinical documentation
pertaining to the veteran's treatment for
diabetes mellitus after July 2002 be
forwarded for incorporation into the
record.
4. The RO should then schedule the
veteran for a VA examination for
compensation purposes which is
sufficiently broad to accurately
determine the current nature and severity
of his diabetes mellitus. All indicated
tests and studies should be accomplished
and the findings then reported in detail.
The examiner should identify the
limitation of activity imposed by the
veteran's service-connected diabetes
mellitus. If none is identified, the
physician should so state in his opinion.
Send the claims folder to the examiner
for review. The examination report
should specifically state that such a
review was conducted.
5. The RO should then readjudicate the
veteran's entitlement to an evaluation in
excess of 20 percent for his Type II
diabetes mellitus, taking Fenderson v.
West, 12 Vet. App. 119 (1999) into
consideration. If the benefit sought on
appeal remains denied, the veteran and
his accredited representative should be
issued a supplemental statement of the
case (SSOC) which addresses all relevant
actions taken on the claim for benefits,
to include a summary of the evidence and
applicable law and regulations
considered, since the issuance of the
statement of the case and also afforded
the opportunity to respond.
The veteran is free to submit additional evidence and
argument while the case is in remand status. See
Kutscherousky v. West, 12 Vet. App. 369 (1999).
The veteran's appeal must be afforded expeditious treatment
by the RO. The law requires that all claims that are
remanded by the Board or by the Court for additional
development or other appropriate action must be handled in an
expeditious manner. See The Veterans' Benefits Improvements
Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658
(1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
_________________________________________________
S.M. CIEPLAK
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).